As legal scholars see it; Court, Congress, and the Human Life Statute

ByArchibald Cox, Archibald Cox is a professor at the Harvard University Law School.June 17, 1981

First,m enactment of Section 1 of S. 158, which attempts to overrule the constitutional decision [on abortion] of the Supreme Court of the United States in Roe v. Wadem (1973) by a simple legislative majority, would be an unconstitutional nullity.

Second,m Section 2, which would deprive the inferior federal courts of power to interfere by injunction or declaratory judgment with the operation of state antiabortion laws is of questionable constitutionality.

Third,m even if S. 158 is technically within the power of Congress to enact, both sections should be rejected as radical and dangerously unprincipled attacks upon the foundations of our constitutionalism.

Section 1 -- if constitutional -- would apparently have the effect of modifying the Fourteenth Amendment so as to make the Fourteenth Amendment prohibit any form of state information, counselling, or other assistance to any person to be uses to interfere with the development of the human fetus and the birth of a child.

Section 1 -- if enacted and constitutionally operative -- may have the effect of requiring every state to enact and enforce against private individuals and organizations the most rigidly absolute of antiabortion laws.

The ultimate bulwarks of individual liberty in the United States are the Bill of Rights and the Fourteenth Amendment interpreted and applied by and independent judiciary, headed by the Supreme Court of the United States. Over the years a few decisions have proved wrong-headed. I have written critically of the abortion decision . . ., but S. 158 should be opposed by all believers in our constitutionalism, regardless of whether they agree or disagree with particular rulings. Wrong-headed decisions can be changed by time and debate, or by constitutional amendment.

The very function of Constitution and court is to put individual liberties beyond the reach of both congressional majorities and popular clamor. Any principle that permits Congress, with the approval of the president, to nullify one constitutional right protected by the Constitution, as interpreted by the court, sanctions the nullification of others. Enactment of S. 158 -- if effective -- would undermine the basic balance of our institutions.

The underlying vice of Section 2 of S. 158 is simply stated. A right is only as good as the remedy. A constitutional right is at the mercy of legislative majorities unless supported by a judicial remedy. To deprive federal courts of jurisdiction granted by the federal constitution would result in a hodgepodge of inconsistent state interpretations, not all of which could be expected to rise above local selfishness or passion. This would be the practical result even if jurisdiction was left with the Supreme Court.

The vice of Section 1 of the [Sen. Jesse] Helms bill is the underlying premise. Even if the pro-abortion decisions are wrong, it would be worse to accept the principle that bare majorities in the Senate and House of Representatives, with the approval of the president, can change the Constitution by simple legislative definitions. If Congress can supply a binding definition of "life" or "person," it can equally declare that the provision of "separate but equal" facilities to persons of different color ism "equal protection of the law"; or that state aid to parochial schools is not an "establishment of religion"; or that the "probable cause" necessary to validate a search or seizure means simply the good faith belief of any police officer that the arrest or search will be helpful to law enforcement.

The balance among the legislative, executive, and judicial branches that these measures would disturb is the very bedrock of our constitutionalism.